Court: District Court of Appeal of Florida; March 29, 2019; Florida; State Appellate Court
Respondent's motion for rehearing is granted in part, acknowledging his challenge to the constitutionality of the 2013 amendments to Chapter 766, which was raised during the motion to dismiss and again in the motion for reconsideration. However, the trial court did not address these constitutional issues in its prior rulings. The motion for rehearing is denied in all other aspects. The previous opinion is withdrawn, and a corrected opinion is issued. Petitioners, Dr. Michael Riggenbach and Orlando Orthopaedic Center, sought certiorari review after the trial court denied their motion to dismiss Respondent Chad Rhodes' medical malpractice lawsuit. Petitioners argued that Rhodes' presuit expert report, authored by a plastic surgeon, did not comply with statutory requirements mandating that the expert be from the same specialty as the defendant, Dr. Riggenbach, an orthopedic surgeon. The court grants the petition, quashes the trial court's order, and remands for further proceedings. The trial court must first determine if Respondent properly notified the State of his constitutional challenge, and if so, assess whether the 'same specialty' requirement is unconstitutional. Should the trial court deny the constitutional challenge, it will dismiss Respondent's complaint with prejudice.
Background: After injuries to his wrist, Rhodes underwent surgery by Dr. Riggenbach, which allegedly resulted in further injury due to negligence. Rhodes served a presuit notice with an expert opinion from Dr. Kreegel, a plastic surgeon, but Petitioners argued this was insufficient as he was not in the same specialty. An evidentiary hearing revealed Dr. Kreegel's experience with similar surgeries, although he did not claim to specialize in orthopedics.
Petitioners' motion to dismiss was initially granted but later denied upon rehearing when a different judge determined that Dr. Kreegel, due to his experience, could be considered to share the same specialty as Dr. Riggenbach. The judge's order denying the motion was analyzed for certiorari review, typically unavailable for such orders, but an exception exists in Florida when presuit requirements under the Florida Medical Malpractice Act are at stake. Courts have consistently allowed certiorari review in instances where presuit notice requirements were unmet, as failing to comply results in irreparable harm to defendants. Consequently, the rehearing order was deemed appropriate for certiorari review.
The statutory framework regarding expert witness specialty requirements evolved, with the presuit statute pre-July 2013 permitting testimony from experts in "the same or similar specialty." The term "similar specialty" was defined to include specialties relevant to the medical condition in question. In a notable case, the Second District allowed testimony from an expert with experience as a medical evacuation flight surgeon against an emergency room physician, interpreting the statute to permit consideration of qualifications beyond those explicitly stated.
In 2013, the legislature amended the definition, requiring that only experts from the "same specialty" as the defendant could provide testimony about care standards. This amendment remains in force and governs the current malpractice claim, specifying that expert witnesses must have an active license and relevant clinical practice within the three years preceding the incident.
Statutory interpretation is a legal issue reviewed de novo, aligning with the Legislature's intent primarily through the statute's plain language. If the statute is clear and unambiguous, courts refrain from probing beyond its text for legislative intent or applying statutory construction rules. Florida courts have interpreted "same specialty" literally, ruling that it does not equate to different specialties providing similar treatment. In **Clare v. Lynch**, the Second District determined that a board-certified podiatrist could not provide expert opinions on care from an orthopedic surgeon, despite both focusing on foot and ankle surgery, due to their distinct specialties. Legislative changes reinforce that only specialists from the same specialty can offer valid opinions, leading to the conclusion that the trial court erred by reinstating a malpractice suit based solely on a noncompliant affidavit from the podiatrist.
In the context of workers' compensation, **Myers v. Pasco County School Board** clarified that an injured worker's request for a change of physician under section 440.13(2)(f) must also adhere to the same specialty requirement. The Judge of Compensation Claims upheld the employer’s authorization of a neurosurgeon over an orthopedic surgeon, arguing that both treat similar conditions. On appeal, the First District ruled that a physician providing similar services in a different specialty does not meet the "same specialty" criterion, resulting in the reversal of the JCC's decision. Additionally, in **Davis v. Karr**, the court found that expert affidavits from a nurse, radiologist, and emergency room physician were inadequate since they did not practice in the same specialty as the defendant orthopedic surgeon.
The court upheld the trial court's dismissal of the plaintiff's medical malpractice suit with prejudice, determining that a plastic surgeon and an orthopedic surgeon do not practice the same specialty as defined by statute. Dr. Kreegel's affidavit was deemed insufficient, leading to the conclusion that the plaintiff, Rhodes, did not meet the presuit requirements outlined in section 766.203 for filing a medical malpractice complaint against the defendants. The court found that the trial court had deviated from essential legal requirements, causing irreparable harm to the defendants, and therefore granted the petition to quash the trial court's order that denied the motion to dismiss. The court directed the trial court to reassess whether the plaintiff meets the requirements of Florida Rule of Civil Procedure 1.071 and section 86.091. If compliance is found, the trial court must address the constitutional issues raised by the plaintiff; otherwise, it must dismiss the complaint with prejudice. The amendment to section 766.102 in 2013 restricts expert testimony in medical negligence cases to specialists in the same field as the defendant, effectively limiting judicial discretion in qualifying expert witnesses. The court emphasized that statutory interpretation is a legal matter aimed at fulfilling legislative intent, which is determined by the statute's clear language. Previous decisions have clarified that "same specialty" is to be interpreted literally, as illustrated by the Clare v. Lynch case, which affirmed that different specialties cannot provide expert opinions on each other's practices.
Both doctors specialize in foot and ankle surgery but have different training and specialties. The Second District clarified that only opinions from specialists within the same specialty are acceptable for medical malpractice suits, rejecting the podiatrist's noncompliant affidavit as insufficient to support the reinstatement of the malpractice claim. The First District analyzed the definition of "same specialty" under workers' compensation law, emphasizing that a claimant is entitled to a one-time change of physician to another doctor practicing in the same specialty as the originally authorized physician. In the case of Myers, a Judge of Compensation Claims (JCC) permitted a change from an orthopedic surgeon to a neurosurgeon, arguing that both treat back injuries, thus fulfilling the statutory requirement. However, the First District reversed this decision, asserting that a physician in a different specialty does not meet the criteria of practicing in the "same specialty," highlighting the distinction between "same" and "similar." Additionally, a recent ruling determined that affidavits from an emergency room physician, a radiologist, and a nurse were insufficient for a medical malpractice claim against an orthopedic surgeon. Consequently, the court upheld the dismissal of the malpractice suit, ruling that the trial court wrongly concluded a plastic surgeon and an orthopedic surgeon are in the same specialty, rendering the supporting affidavit statutorily inadequate and leading to a departure from essential legal requirements.
The petition is granted, and the trial court's order denying the motion to dismiss is quashed because the Respondent did not provide a required written medical expert opinion from a specialist matching the defendant healthcare provider's specialty. The case is remanded for further proceedings, where the trial court must determine if the Respondent meets the requirements of Florida Rule of Civil Procedure 1.071 and section 86.091, Florida Statutes 2017. If compliance is found, the court will address previously raised constitutional issues. If the statutes are not found unconstitutional, the trial court must dismiss the Respondent's complaint with prejudice. The ruling references a 2013 amendment to section 766.102, which limits suitable medical experts in negligence cases to those within the same specialty as the defendant, effectively overturning Oliveros v. Adventist Health Systems/Sunbelt, Inc. and reaffirming Barrio v. Wilson. This repeal restricts the court's ability to qualify or disqualify expert witnesses based solely on specified qualifications.
